Step 9.1 Consider 'intra-type' arguments

(a) Legal arguments based on text

The search for meaning of a text begins with the words of the text.266 Think about whether you can use any of the following kinds of 'textual' arguments and counterarguments to support your interpretation of the law and to support its applicability to your case's facts.267

brainstorm BRAINSTORM

Thrust

Parry

‘The “plain”, unambiguous wording of the text supports my interpretation’268

‘The meaning of the text is not in fact “plain”, but rather the text is ambiguous’

‘The “plain meaning” of the text is different from what my opponent asserts; the “plain meaning” in fact supports my interpretation’

‘A textual or substantive canon of interpretation supports my interpretation’269

‘The canon of interpretation my opponent asserts does not apply (for example, my opponent’s canon of interpretation applies only if the text is ambiguous, yet here the text is unambiguous)’

‘An opposing textual or substantive canon of interpretation in fact supports my interpretation’270

‘My interpretation can be inferred from other parts of the same text (for example, from the words used in other sections of the same Constitution, statute, or clause in a contract or will, or from the text’s organization)’271

‘My interpretation can also be inferred from the way other parts of the same text are expressed or organized’

Table 66: Textual arguments

266 Richard K Neumann Jr, Legal Reasoning and Legal Writing: Structure, Style, and Strategy(5th ed, 2005) 184 (referring to statutes).

267 William Huhn, The Five Types of Legal Argument (2002) 17–29.

268 William Huhn, The Five Types of Legal Argument (2002) 19; Richard K Neumann Jr, Legal Reasoning and Legal Writing: Structure, Style, and Strategy(5th ed, 2005) 184 (Neumann's first tool of statutory interpretation).

269 William Huhn, The Five Types of Legal Argument (2002) 22; Richard K Neumann Jr, Legal Reasoning and Legal Writing: Structure, Style, and Strategy(5th ed, 2005) 185 (Neumann's seventh tool of statutory interpretation).

270 See Richard K Neumann Jr, Legal Reasoning and Legal Writing: Structure, Style, and Strategy(5th ed, 2005) 187 ('Canons are rules of a sort and must be proved with authority. But be careful: the lawyer hurling a canon as an epithet is apt to find a contradictory one thrown right back'). Karl Llewellyn famously showed 2 opposing canons of statutory interpretation for almost every point. He listed 47 examples (The Common Law Tradition (1960), 521–535). But 'every lawyer must be familiar with them all: they are still needed tools of argument … [T]o make any canon take hold … the construction contended for must be sold … by means other than the use of the canon: … good sense … and a simple construction of the available language to achieve that sense, by tenable means, out of the statutory language' (Llewellyn, above, 521). See also Neumann, above, 187 ('A convincing argument is … a thoughtful and thorough analysis of the statute. Canons play a part in that, but not the largest part'); Anthony Mason, 'The Role of Counsel and Appellate Advocacy' (1984) 58 Australian Law Journal 537, 541 ('Resort to authority is generally of little help in resolving the questions of interpretation, statutory and non-statutory, which pervade appellate work ... Context, including examination of scope and purpose, is always a more powerful aid and that will involve the construction of an argument which looks to the operation and interplay of the various provisions of the instrument which is under consideration').

271 William Huhn calls these 'intratextual arguments'. Intratextual arguments have 2 types: (1) compare the words used in one part of the text with words in another part; and (2) deduce meaning from the words' position within the organisation of the text: The Five Types of Legal Argument (2002) 25. See also Richard K Neumann Jr, Legal Reasoning and Legal Writing: Structure, Style, and Strategy (5th ed, 2005) 184–5 (Neumann's second tool of statutory interpretation).

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